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Nawab Syed Mazaffar Ali Khan, President of the Endowed Committee of Basaut Ali Khan's Estate Vs. the Secretary of State for India in Council and Anr. (04.01.1918 - CALHC) - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in44Ind.Cas.1
AppellantNawab Syed Mazaffar Ali Khan, President of the Endowed Committee of Basaut Ali Khan's Estate
RespondentThe Secretary of State for India in Council and Anr.
Cases ReferredHarish Chunder Neogy v. Secretary of State
Excerpt:
land acquisition act (i of 1894), section 23 - quarry, compensation for, mode of calculation of. - .....he admitted that he had not before tried this method for the purpose of valuing quarries. mr. green's valuation, i may state, was the basis of the collector's award. the district judge, however, did not accept his valuation, as he considered the royalty of 4 annas per hundred cubic feet of stone was too low. in this court mr. justice i). chatterjee did not accept his valuation also and mr. justice beachcroft was not wholly satisfied with it. 'it may be,' says mr. justice beachcroft, ' that in fact mr. green has under estimated or over-estimated the quantity of workable stone. but that is not the point. the question is, would a prospective purchaser, apart from the question of low rates, have come to much the same conclusion.' i am unable to accept mr. green's estimate for two main.....
Judgment:

Fletcher, J.

1. This appeal is preferred under Clause 15 of the Letters Patent.

2. The only question involved in the appeal is, what was the market value of certain land compulsorily acquired under the provisions of the Land Acquisition Act.

3. The land acquired is a hill in the Sonthal Perganas which is called Bahadurpur and Belpahari. It was acquired in connection with the construction of the Lower Ganges Bridge. The value of the land as a quarry was the subject-matter of the enquiry in the proceedings out of which this appeal arises and also was the basis of the argument before us.

4. The declaration is dated the 9th August 1909.

5. The Collector awarded Rs. 976-6-0 in respect of the land the subject of the present appeal. The District Judge increased this amount to Rs. 3,125.

6. On appeal to this Court the appeal came to be heard by Digambar Chatterjee and Beachcroft, JJ. They were divided in their opinion, Digambar Chatterjee, J. was of opinion that the amount awarded by the District Judge ought to be increased to Rs. 8,734-4-0 whilst Beachcroft, J., was of opinion that no ground had been shown' for increasing the amount awarded by the District Judge. Before the District Judge as well as before Digambar Chatterjee and Beachcroft, JJ., there were two claimants. The present appellant who was the claimant No. 1 and is the proprietor of the land. The claimant No. 2, Mr. Atkinson, took a lease for 4 years of the property on the 5th August 1908.

7. The claimant No. 1 alleges that the lease to Atkinson covers only 6 bighas of the property, although the property acquired contains an area of 127 bighas.

8. Claimant No. 2 before the Collector claimed Rs. 31,00,000. Claimant No. 1 did not make any claim before the Collector as he was not served with notice, but on his application for a reference to the Judge he claimed Rs. 1,60,000. The Collector valued the land in 3 villages at Rs. 1,394-80. We are only concerned with the land in 2 villages Banjikand and Shampur and as already mentioned the amount awarded in respect of these 2 villages was Rs. 976-6-0

9. The Collector relied on a valuation made by Mr. Green, Superintending Engineer to the Government. Foolishly a copy of this valuation was not annexed to the award and for some time the parties were refused a copy of the same. A copy, however, was ultimately given and the claimants do not appear to have been prejudiced in any way by the refusal to supply a copy in the first instance.

10. Claimant No. 1 has preferred this appeal under Clause 15 of the Letters Patent. No appeal has been preferred by claimant No. 2.

11. In the first place I will deal with the suggestion that was made that the lease to Atkinson comprised only 6 or perhaps 20 bighas. The lease is of the Khaspatil Belpahari hill in Mouza Belpahari excepting lands settled with tenants. The northern boundary is given in the lease as Mouza Banjikand and the southern boundary as Sbampur. The lands according to the description in the lease bear the Khasra. No. 2 in Mouza Belpahari. The claimant No. 1 produced a khasra Exhibit 2 of Mouza Shampur, which they say is the khasra referred to in the lease. The claimant No. 1 also called a witness Ketabuddin Sheikh' who stated that Shampur is also called Belpahari. This witness perhaps by oversight was not cross-examined on this point. But if Shampur and Belpahari are one and the same, the southern boundary as given in the lease of Shampur is not explained. It may be that the khasra referred to in the lease is a false demonstration. The evidence in my opinion does not show that all that Atkinson got under his lease was 6 or 20 bighas. The main point, however, argued on this appeal is as to the amount of compensation to be allowed. The present appeal is valued at Rs. 8,734-4-0, the amount that Digambar Chatterjee, J., thought should be allowed. The valuation of that learned Judge proceeded on this basis. He took the terms of a provisional agreement, dated the 29th of April 1909, as varied on the 28th of May 1909 between Mr. Atkinson and Mr. Gales, the Engineer-in-Chief in charge of the construction of the Lower Ganges Bridge, Under the terms of that agreement the Engineer-in-Chief was to get a lease from Mr. Atkinson of Belpahari up to October 1912, the date when Atkinson's lease from the claimant No. 1 terminated. The terms of the proposed lease were a monthly rent of Rs. 42, a royalty of 7 annas per 100 cubic feet of material removed from the quarry, the minimum amount to be removed being guaranteed at 40,000 cubic feet a month and that the agreement could be determined by the lessee on one month's notice. On this basis Digambar Chatterjee, J., thought that the compensation should be based, on the assumption that this agreement should run untill October 1912 and calculating the minimum amount to be worked a month at the royalty of 7 annas per 100 cubic feet and adding the dead rent he arrived at the figure of Rs. 8,734-4-0.

12. I am wholly unable to agree with the view of the learned Judge.

13. The evidence of Mr. Green, which in ray opinion is not really challenged, shows that the amount of stone that could be conveniently and profitably worked was 4,81,032 cubic feet.

14. Suggestions have been made that Mr. Green neglected to take into consideration stone when the overlay was more than 3 feet and also when the stone lay below 15 feet. The evidence does not show that with regard to the land in question Mr. Green's method was inaccurate and it is obvious that a prudent purchaser before he acquired an unopened quarry would consult an expert as to the amount of stone likely to be gotten. There is nothing to suggest that an expert so consulted would have proceeded differently or come to a conclusion other than that arrived at by Mr. Green,

15. Evidence of what may be the working conditions or the value of stone in other quarries seems to me to be of little or no value. I think the estimate of Mr. Green as to the quantity of stone capable of being worked should be accepted, and as to the rate that should be paid there is no difficulty. The parties agreed upon a rate of 7 annas per 100 cubic feet and this cannot be departed from on the ground that the Government paid in excess of this rate with regard to small quantities either to terminate disputes or to avoid litigation. In the result I think the proper basis of the compensation is the amount of workable stone as estimated by Mr. Green taken at the agreed rate of 7 annas per 100 cubic feet.

16. On that basis the amount given to the claimants by the learned District Judge is in excess of the value. The present appeal I think, therefore, fails and must be dismissed with costs. Three hundred rupees.

Greaves, J.

17. I agree.

Shamsul Huda, J.

18. I regret I am unable to agree with the majority of the Court in the conclusions arrived at by them. As observed in the case of Harish Chunder Neogy v. Secretary of State for India 11 C.W.N. 875 it is generally necessary in oases of this kind to take two or all the methods of valuation available in order to arrive at a fairly correct valuation. Exact valuation is practically impossible. The approximate market value is all that can be aimed at. In this case three methods of valuation have been discussed before us. The first is the valuation based on Mr. Green's report supported by his evidence in Court. Mr. Green, however, is not an expert in matters of quarrying. He made his valuation on the result of certain trial pits that he dug all over the land at regular intervals. He admitted that he had not before tried this method for the purpose of valuing quarries. Mr. Green's valuation, I may state, was the basis of the Collector's award. The District Judge, however, did not accept his valuation, as he considered the royalty of 4 annas per hundred cubic feet of stone was too low. In this Court Mr. Justice I). Chatterjee did not accept his valuation also and Mr. Justice Beachcroft was not wholly satisfied with it. 'It may be,' says Mr. Justice Beachcroft, ' that in fact Mr. Green has under estimated or over-estimated the quantity of workable stone. But that is not the point. The question is, would a prospective purchaser, apart from the question of low rates, have come to much the same conclusion.' I am unable to accept Mr. Green's estimate for two main reasons. In the first place, Mr. Green only valued stone that could be reached within 3 feet of the surface and he also did not take into account any stone below a depth of 15 feet. In this respect the other expert witnesses are not in accord with him. For instance in regard to the overlay of more than 3 feet, Mr. Martin, the first witness for the Secretary of State, said that it would pay to remove about 5 or 6 feet of earth unless one struck solid stone; and regarding the depth up to which a quarry can be worked, Mr. Edward, Executive Engineer of State Railways of India, who had actual experience of quarrying at Belpahar, being in charge of the quarries for over a year, says that in his experience it does not pay to work down more than 15 or 20 feet on a slope such as Belpahar. I think, therefore, Mr. Green's estimate is an under-valuation and should not be accepted.

19. The second method of valuation is based on the lease granted to Atkinson, the claimant No. 2, by the claimant No. 1, dated, the 5th August 1908. It seems that Atkinson had taken a lease for some land in Belpahar for four years at a rental of Rs. 250 a year, the whole of which amount, namely, Rs. 1,000 was paid in advance. The difficulty in basing a conclusion' on this lease has arisen from the uncertainty regarding the quantity of land covered by it. It has been contended on behalf of the appellant that this lease covered an area of 6 bighas only as it is expressly stated in the lease to belong to khasra No. 2. It appears from Exhibit 2 that khasra No. 2 of Mouza Shampur has an area of 6 bighas and 5 cottas only. It has, however, been contended on behalf of the Secretary of State that Shampur is different from Belpahar, and that, therefore, Exhibit 2, the khasra of Shampur, gives no indication of the quantity of land covered by the lease. As has been pointed out by Mr. Justice D. Chatterjee, the first witness examined on behalf of the first party stated in the very beginning of his examination-in-chief, 'I know the Bandi Khord and Shampur Mahal, Shampur is also known as Belpahari', and there was no cross examination on the point. I cannot think that the statement like this would have gone unchallenged if it were untrue. Assuming, however, that the lease covered the whole of the waste land of the mouzah, as pointed out by Mr. Justice D. Chatterjee, it would cover an area of 20 bighas. It was, however, claimed by claimant No. 2 that the lease covered the entire area of the mouzah, but it is clear that his lease was in respect of the Khaspalit hill excepting the settled land and lands cultivated by tenants. On the footing of the lease covering an area of 20 bighas, the rent for - 4 years of 127 bighas would amount to Rs. 6,350. It is not, however, shown that four years' quarrying by Atkinson would have exhausted the entire quantity of stone and left the property wholly valueless. All that can be said on the basis of this lease is that the value should in no case be less than Rs. 6,350.

20. The third basis of valuation is the provisional agreement between claimant No. 2 and the Engineer-in Chief of the Lower Ganges Bridge. By that lease the lessee agreed to pay to Atkinson for Belpahar a rental of Rs. 42 per annum for the period from April 1909 to October 1912. Three other mouzahs were also included in this lease on similar terms with a difference in the rent. When the Secretary of State took possession in December 1909 the lease had 35 months yet to run. If that lease had been in force under its terms as subsequently varied, Atkinson would have received for Belpahari Rs. 42 into 35 = Rs. 1470 as rent and royalty calculated on a minimum quantify of 40,000 cubic feet of stone per month at the rate of 7 annas per hundred cubic feet, which, would have amounted to Rs. 6,125, the whole amounting to Rs. 7,595. The only question as to the acceptance of this basis is that the lease was terminable on a month's notice. No doubt the lessee guarded him self against contingencies by this special provision, but there is nothing to show that such an option was at all likely to be exercised by the lessee. It is noticeable that in accordance with the terms of the pro-visional lease a formal lease was subsequently executed in respect of the three Other mouzahs. When the evidence in Court was being recorded, the term of the lease of the three mouzahs had expired and yet there is not a word in the evidence to suggest that as regards those mouzahs the option had to be exercised in any case and I have no reason to think that the term of the provisional lease, namely, the period from April 1939 to October 1912 did not represent an expectation on the part of the lessee to continue quarrying till the end of the lease. The reason why Belpahar had to be acquired, instead of being held in lease like the other three mouzahs, was that there was a defect in the title of the lessor. That, however, does not affect the present question. The valuation on this basis is strongly supported by the valuation based on Atkinson's lease of 5th August 1908, the difference between Rs. 6,350 and 7,595 being accounted for by the chance of some value being still left in the quarries at the end of Atkinson's lease, which there is nothing to negative. I would, therefore, agree with the valuation arrived at by Mr. Justice D. Chatterjee and decree accordingly.


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